Citation Nr: 0813880
Decision Date: 04/25/08 Archive Date: 05/01/08
DOCKET NO. 04-01 750 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for hypertension.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
M. Scott Walker, Associate Counsel
INTRODUCTION
The veteran had active service from March 1974 to March 1978.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
San Diego, California. The veteran's claims file has since
been transferred to the RO in St. Louis, Missouri.
In April 2004, an informal conference was held at the San
Diego RO in lieu of a personal hearing.
The veteran's claims were remanded by the Board in May 2005
for the purpose of obtaining VA examinations which were
conducted.
FINDINGS OF FACT
1. Hypertension was not manifest during service,
hypertension was not manifest within one year of separation,
and the veteran's current diagnosis of hypertension is not
attributable to service.
2. Tinnitus did not have its onset in or is otherwise
attributable to service.
CONCLUSIONS OF LAW
1. Hypertension was neither incurred in nor aggravated by
service and may not be presumed to have been incurred or
aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1131, 1137 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303,
3.307, 3.309 (2007).
2. Tinnitus was not incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp.
2006); 38 C.F.R. §§ 3.303, 3.304 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the veteran's claim, VA has met all statutory
and regulatory notice and duty to assist provisions. See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126;
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.
Prior to the initial adjudication of the veteran's claim,
letters dated in August 2002 and October 2002 fully satisfied
the duty to notify provisions. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002). The veteran was aware that it was
ultimately his responsibility to give VA any evidence
pertaining to the claim. The VCAA letters told the veteran
to provide any relevant evidence in his possession. See
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II). ). In particular, the VCAA notification:
(1) informed the veteran about the information and evidence
not of record that is necessary to substantiate the claim;
(2) informed the veteran about the information and evidence
that VA will seek to provide; (3) informed the veteran about
the information and evidence that the veteran is expected to
provide; and (4) requested that the veteran provide any
evidence in his possession that pertains to the claims, or
something to the effect that the veteran should "give us
everything you've got pertaining to your claim." See
Pelegrini II.
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) has held that a statement of the case (SOC)
or supplemental statement of the case (SSOC) can constitute a
"readjudication decision" that complies with all applicable
due process and notification requirements if adequate VCAA
notice is provided prior to the SOC or SSOC. See Mayfield v.
Nicholson, No. 2007-7130 (Fed. Cir. Sept 17, 2007)
(Mayfield III). As a matter of law, the provision of
adequate VCAA notice prior to a readjudication "cures" any
timing problem associated with inadequate notice or the lack
of notice prior to an initial adjudication. See Mayfield
III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333-
34).
In any event, the Board finds that any deficiency in the
notice to the veteran or the timing of these notices is
harmless error. See Overton v. Nicholson, 20 Vet. App. 427,
435 (2006) (finding that the Board erred by relying on
various post-decisional documents to conclude that adequate
38 U.S.C.A. § 5103(a) notice had been provided to the
veteran, the United States Court of Appeals for Veterans
Claims (Court) found that the evidence established that the
veteran was afforded a meaningful opportunity to participate
in the adjudication of the claim, and found that the error
was harmless, as the Board has done in this case.)
In Sanders v. Nicholson, 487 F. 3d 881 (2007), the Federal
Circuit held that any error by VA in providing the notice
required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1)
is presumed prejudicial, and that once an error is identified
as to any of the four notice elements the burden shifts to VA
to demonstrate that the error was not prejudicial to the
appellant. The Federal Circuit stated that requiring an
appellant to demonstrate prejudice as a result of any notice
error is inconsistent with the purposes of both the VCAA and
VA's uniquely pro-claimant benefits system.
Instead, the Federal Circuit held in Sanders that all VCAA
notice errors are presumed prejudicial and require reversal
unless VA can show that the error did not affect the
essential fairness of the adjudication. To do this, VA must
show that the purpose of the notice was not frustrated, such
as by demonstrating: (1) that any defect was cured by actual
knowledge on the part of the veteran, see Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008) ("Actual knowledge is
established by statements or actions by the claimant or the
claimant's representative that demonstrate an awareness of
what was necessary to substantiate his or her claim.")
(citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007));
(2) that a reasonable person could be expected to understand
from the notice what was needed; or (3) that a benefit could
not have been awarded as a matter of law. Sanders, 487 F.3d
at 889. Additionally, consideration also should be given to
"whether the post-adjudicatory notice and opportunity to
develop the case that is provided during the extensive
administrative appellate proceedings leading to the final
Board decision and final Agency adjudication of the claim ...
served to render any pre-adjudicatory section 5103(a) notice
error non-prejudicial." Vazquez-Flores v. Peake, No. 05-
0355, slip op. at 9 (U.S. Vet. App. January 30, 2008).
If any notice deficiency is present in this case, the Board
finds that the presumption of prejudice on VA's part has been
rebutted in this case by the following: (1) based on the
communications sent to the veteran over the course of this
appeal, the veteran clearly has actual knowledge of the
evidence he is required to submit in this case; and (2) based
on the veteran's contentions as well as the communications
provided to the veteran by VA, it is reasonable to expect
that the veteran understands what was needed to prevail. See
Sanders; see also Simmons v. Nicholson, 487 F. 3d 892 (2007).
VA also fulfilled its duty to obtain all relevant evidence
with respect to the issue on appeal. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159. The veteran's service medical records, VA
medical treatment records, and identified private medical
records have been obtained, to the extent available.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no
indication in the record that any additional evidence,
relevant to the issue decided herein, is available and not
part of the claims file.
With respect to the duty to assist, the Board notes that the
veteran has undergone a VA examination in conjunction with
each of his claims for service connection. 38 C.F.R.
§ 3.159(c)(4). There is no objective evidence indicating
that there has been a material change in either condition
since he was last examined. 38 C.F.R. § 3.327(a). The duty
to assist does not require that a claim be remanded solely
because of the passage of time since an otherwise adequate VA
examination was conducted. See VAOPGCPREC 11-95. The VA
examination reports are thorough, the examinations in this
case are adequate upon which to base a decision, and the
records satisfy 38 C.F.R. § 3.326.
Since the Board has concluded that the preponderance of the
evidence is against the claim of service connection, any
questions as to the appropriate disability rating or
effective date to be assigned are rendered moot, and no
further notice is needed. See Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006).
Service Connection
In order to establish service connection for a claimed
disability, the facts must demonstrate that a disease or
injury resulting in current disability was incurred in active
military service or, if pre-existing active service, was
aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§§ 3.303, 3.304.
Service connection may also be granted for any disease
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d). In addition,
certain chronic diseases, including hypertension, may be
presumed to have been incurred or aggravated during service
if they become disabling to a compensable degree within one
year of separation from active duty. 38 U.S.C.A. §§ 1101,
1112; 38 C.F.R. §§ 3.307, 3.309.
That an injury occurred in service alone is not enough; there
must be chronic disability resulting from that injury. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity.
38 C.F.R. § 3.303(b).
The Court has held that, in order to prevail on the issue of
service connection on the merits, there must be medical
evidence of (1) a current disability; (2) medical, or in
certain circumstances, lay evidence of in-service incurrence
or aggravation of a disease or injury; and (3) medical
evidence of a nexus between the claimed in-service disease or
injury and the present disease or injury. Hickson v. West,
12 Vet. App. 247, 253 (1999).
A claim of service connection for a disability must be
accompanied by medical evidence establishing that the veteran
currently has a claimed disability. Absent proof of a
present disability, there can be no valid claim. See, e.g.,
Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38 U.S.C. §
1110 requires current symptomatology at the time the claim is
filed in order for a veteran to be entitled to compensation);
Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (38 U.S.C.
§ 1131 requires the existence of a present disability for VA
compensation purposes).
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. Gilbert v. Derwinski, 1 Vet. App.
49 (1990). To do so, the Board must assess the credibility
and weight of all the evidence, including the medical
evidence, to determine its probative value, accounting for
evidence that it finds to be persuasive or unpersuasive, and
providing reasons for rejecting any evidence favorable to the
appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992).
Hypertension
The veteran filed a claim for service connection for
hypertension in July 2002. During his period of active duty,
the veteran's blood pressure was 140/80 and 140/90 in
September 1974, 124/88 in March 1975, 146/76 in December
1976, 124/80 and 148/90 (after 10 minutes of rest) in May
1977, and 140/80 in September 1978. Although instances of
elevated blood pressure were noted, his service medical
records are silent as to any treatment or diagnosis of
hypertension. His March 1978 separation examination yielded
a blood pressure reading of 124/80. The veteran's heart
evaluation was noted to be normal.
Following the veteran's 1978 separation from service, the
record reflects that he was seen by Dr. M. for various
medical complaints. It was noted in July 1985 that the
veteran had hypertension. Dr. M. did not provide the
etiology of the hypertension diagnosis.
VA outpatient reports from June 2001 and June 2002 note a
diagnosis of hypertension. However, an opinion as to a nexus
to the veteran's period of active service was not provided in
either report. To that end, the veteran was afforded a VA
examination in October 2002. The examiner noted a review of
the veteran's claims file. An initial diagnosis of
hypertension in 1984 was noted, as were high blood pressure
readings in 2000 and 2001. At the time of the examination,
the veteran's blood pressure was 152/94 when seated, 150/92
in the recumbent position, and 148/90 when standing.
Asymptomatic, mild hypertension was diagnosed. The examiner
stated that the veteran's hypertension did not exist during
active service. Instead, the examiner opined that the
veteran's onset of high blood pressure occurred after his
active duty, so the claim for hypertension was at least as
likely as not unrelated to his military service.
The veteran was afforded another VA examination in September
2005. The veteran's blood pressure reading was 156/104 -
right arm sitting, 154/104 - left arm sitting, 152/104 -
right arm in prone position, 150/100 - left arm prone
position, and 154/100 - standing, both arms. According to
the examiner, instances of elevated blood pressure in service
may have been caused by other conditions for which the
veteran was being examined at those times. The examiner
stated that a consistent elevation in blood pressure during
service, to meet the standards required for a diagnosis of
hypertension, was not evident. Three-day hypertension
testing was not performed during the veteran's period of
service. The examiner then opined that he did not find
documented evidence to support a diagnosis of hypertension
within the veteran's service medical records. The examiner
stated that the veteran's hypertension was more likely
secondary to obesity, instead of his period of active
service.
The same examiner provided an addendum opinion in August
2007. At that time, a review of the veteran's updated claims
file was noted, along with the veteran's private treatment
records from Dr. M. from October 1982 through June 2004. The
examiner stated that hypertension is a chronic condition of
elevated blood pressure, and that such a pattern was not
evident from the isolated periods of elevated blood pressure
recorded in the veteran's service medical records.
Therefore, the examiner was unable to render a diagnosis of
hypertension during the veteran's period of military service
or within the first year thereafter. The examiner noted that
the veteran's first diagnosis of hypertension was in fact
July 1985 (as shown in Dr. M.'s records). No treatment was
rendered for hypertension during service or within one year
following service. Therefore, the examiner stated that it
was unlikely that the veteran's hypertension was secondary to
his period of active duty.
Although the veteran has satisfied the first criterion
necessary to establish service connection for hypertension, a
current diagnosis thereof, he has failed to demonstrate that
he suffered from hypertension during his period of active
duty. Further, the veteran's record is silent as to an
etiological nexus linking his current disorder to his
military service.
The Board notes that, although the veteran believes that his
hypertension was incurred during active duty, the veteran as
a lay person has not been shown to be capable of making
medical conclusions, thus, his statements regarding causation
are not competent. Espiritu v. Derwinski, 2 Vet. App. 492,
495 (1992).
Neither the Board nor the veteran is competent to supplement
the record with unsubstantiated medical conclusions. Colvin
v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely,
health professionals are experts and are presumed to know the
requirements applicable to their practice and to have taken
them into account in providing a diagnosis. Cohen v. Brown,
10 Vet. App. 128 (1997).
As noted above, hypertension was not diagnosed during the
veteran's period of service. Following service, hypertension
was neither manifest nor diagnosed within one year of
separation from service. There is no competent medical
evidence of any link between his current diagnosis and
service. As noted, the veteran is not competent to make this
causal link or to state the etiology of his currently-
diagnosed hypertension. Instead, the competent medical
evidence shows that hypertension is not related to service.
The October 2002 VA examiner stated that the veteran's
hypertension did not exist during active service. Instead,
the examiner opined that the veteran's onset of high blood
pressure occurred after his active duty, so the claim for
hypertension is at least as likely as not unrelated to his
military service. In September 2005, another VA examiner
stated that the veteran's hypertension was more likely
secondary to obesity, instead of his period of active
service. In an addendum opinion, he noted that it was
unlikely that the veteran's hypertension was secondary to his
period of active duty. The Board attaches significant
probative value to these opinions, as they were well-
reasoned, detailed, consistent with other evidence of record,
and included a review of the claims file. See Prejean v.
West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing
the probative value of a medical opinion are the physician's
access to the claims file and the thoroughness and detail of
the opinion.).
In sum, the competent evidence does not establish that the
veteran's hypertension had its onset in service or within one
year of separation. The service medical records showed
isolated elevated blood pressure levels, but they are silent
as to a diagnosis or treatment for hypertension. Thus, there
was no chronic disability shown during service. Further,
there is no continuity of symptomatology following service.
There is no record of any continuous symptoms from his
separation from service onward. Rather, the record
establishes that approximately 8 years after separation, the
veteran was diagnosed with hypertension. Despite the
veteran's contentions that he has experienced hypertension
since service, the record is devoid of supporting evidence.
The evidence in this case is not so evenly balanced so as to
allow application of the benefit-of-the-doubt rule as
required by law and VA regulations. 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.102. Therefore, the preponderance is against
the veteran's claim, and it must be denied.
Tinnitus
The veteran filed a claim for service connection for tinnitus
in July 2002. His service medical records do not reveal a
diagnosis of tinnitus, in either ear, and tinnitus was not
noted on his March 1978 separation examination. His ear
evaluation was noted to be normal.
Post-service, a VA outpatient report from July 2002 noted
occasional tinnitus in the right ear, a few times per year,
and lasting only a few seconds. The veteran reported
significant noise exposure during his period of military
service. He also stated that he wore double hearing
protection while working as a boiler technician in ship
engine rooms in service. Shooting firearms without ear
protection, both in the military and as a civilian, was also
noted.
During a September 2005 VA examination, the veteran stated
that the onset of tinnitus occurred 30 years prior while
working in the boiler room. He noted that hearing protection
was not effective. Pre-military and post-military noise
exposure was denied. The veteran stated that his tinnitus
was unilateral only, and in his left ear. He reported that
tinnitus occurred intermittently, several times per day, and
that it could last from a few minutes to half an hour.
Referring to the veteran's service medical records, the
examiner noted that audiometric testing in January 1976
revealed mild hearing loss in the left ear and normal hearing
in the right (except for mild hearing loss at 1000 Hertz).
Testing in November that year demonstrated normal hearing,
bilaterally. Testing performed in June 1977 yielded normal
hearing, bilaterally, except for mild hearing loss in the
right ear at 1000 Hertz. The veteran's separation
examination noted normal hearing, bilaterally. The examiner
noted that if the veteran's tinnitus had been related to
military service, it would have been expected that the
veteran would have had tinnitus in both ears rather than
monaurally. The examiner stated that because the veteran's
hearing was within normal limits in June 1977 and at
separation, the examiner opined that the veteran's service
records were not suggestive of noise-induced hearing loss,
and that tinnitus was not at least as likely as not related
to service.
In a July 2007 addendum opinion, the same examiner noted a
review of the veteran's claims file. The examiner then noted
that the veteran had complained of right ear tinnitus (only
occurring a few times per year and lasting only a few
seconds) in July 2002, and that the veteran reported left ear
tinnitus, with an onset in service, during the September 2005
VA examination. The examiner also noted that the July 2002
audiological evaluation yielded hearing within normal limits,
save for mild left ear hearing loss at 6000 Hz. The examiner
stated that, even if the veteran's left ear tinnitus had
begun during service, a diagnosis of noise-induced tinnitus
in the absence of noise-induced hearing loss would be
difficult to proffer. It was also noted that the veteran's
separation examination was not indicative of noise-induced
hearing loss (especially in the 3000 Hertz - 6000 Hertz
range). Therefore, the examiner concluded that it was not at
least as likely as not that the veteran's tinnitus in the
left ear was related to service. To support his opinion, the
examiner relied upon the veteran's own conflicting reports as
to when tinnitus began and in which ear, the absence of
significant sensorineural hearing loss in the left ear during
service, and the absence of tinnitus in July 2002. Instead,
the examiner believed that the veteran's tinnitus was the
result of an underlying auditory pathology.
Even though the veteran has a current diagnosis of tinnitus,
he has failed to demonstrate that the disorder began during
his period of active duty. Further, the record is silent as
to a medical link between his current disorder and his
military service. Rather, the probative evidence, the VA
medical examination reports, show that tinnitus is not
attributable to service.
The Board notes that the veteran can attest to factual
matters of which he had first-hand knowledge, e.g.,
experiencing pain in service, reporting to sick call, being
placed on limited duty, and undergoing physical therapy. See
Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).
Therefore, the veteran is competent to report that he
experienced tinnitus during service. However, as previously
noted, the veteran as a lay person has not been shown to be
capable of making medical conclusions, thus, his statements
regarding causation are not competent. See Espiritu.
In this case, tinnitus was not diagnosed during the veteran's
period of service. There is no competent medical evidence of
any link between his current diagnosis of tinnitus and
service. As noted, the veteran is not competent to make this
causal link or to state an etiological connection. Instead,
the competent medical evidence shows that his tinnitus is not
related to service. A VA opinion, initially offered in
September 2005 and reiterated in a July 2007 addendum
opinion, stated that it was not as likely as not that the
veteran's current disorder was related to his period of
active service. The examiner conducted a thorough
examination, and a rationale was provided in support of each
opinion.
The evidence in this case is not so evenly balanced so as to
allow application of the benefit-of-the-doubt rule as
required by law and VA regulations. 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.102. Therefore, the preponderance is against
the veteran's claim, and it must be denied.
ORDER
Entitlement to service connection for hypertension is denied.
Entitlement to service connection for tinnitus is denied.
____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs